The temporary restraining order barring lawmakers from passing any tax plan by a simple majority remains in effect while Nevada's seven federal judges decide whether they have any authority to interfere in the Nevada Legislature's tax-budget battle.
A decision is expected some time today. But at least one member of the panel indicated Wednesday the order might just continue for 10 days in hopes the Legislature can pass a tax plan by two-thirds and render the issue moot.
"In essence, are you not asking us to overturn the decision of the Nevada Supreme Court six days ago and don't we lack jurisdiction to do so," asked Chief District Judge Philip Pro of Las Vegas.
He pointed to long-standing law which says state Supreme Courts are the final arbiters of legal issues involving state constitutions.
"How can we possibly grant the relief you're seeking without striking the ruling of the Nevada Supreme Court?"
"I agree the ruling of the Supreme Court is being attacked," said Judge David Hagen of Reno.
John Eastman, the legal scholar who filed the complaint, said it was aimed at blocking the Legislature from passing a tax bill by a simple majority, not at the court.
And he said the court can deal with the issue because "the Supreme court doesn't have the authority to direct the Legislature to violate the constitution."
Eastman said the federal issues including that the rights of Nevada voters are being cheated by not requiring the two-thirds majority to raise taxes, were never raised in the state court proceedings.
"No one had raised the vote dilution claim because it didn't exist until the ruling of the Supreme Court," he said.
He argued the Nevada court's decision lifting the two-thirds requirement for the specific purpose of passing a tax bill to fund education violates the constitutional legal principle which says "the people of the state have the right to select the governing structure of the state."
Judge Howard McKibben of Reno questioned whether the court shouldn't just wait a week or 10 days to see if lawmakers can get a bill passed. He noted there has been some movement toward a compromise by both sides and that, if lawmakers pass a bill by two-thirds majority of each house, the federal case would become moot.
Eastman, however, said the Republicans who sued want the Nevada Legislature permanently blocked from trying to use that Supreme Court decision.
William Keane representing the Legislative Counsel Bureau said the case should be thrown out simply because lawmakers have done nothing illegal. He said they simply followed the law in Nevada's constitution as interpreted by the Nevada Supreme Court. And he said those constitutional issues were raised by the GOP tax hardliners in their counter claim, which was rejected by the Supreme Court.
And Bureau Deputy Brad Wilkinson argued that, in any case, legislators have immunity for their actions as long as those actions fall "in the sphere of legitimate legislative activity."